The case of Sargent v Goebbels [2024] QDC 138 concerned an appeal to the District Court of Queensland (Court) by an officer of the then Department of Environment and Science (Officer) alleging errors of law in respect of a decision of the Magistrates Court that a respondent company and its executive officer were not guilty of offences under the Environmental Protection Act 1994 (Qld) (EP Act) related to the alleged carrying out of an environmentally relevant activity (ERA) without an environmental authority for the operation of a resource recovery and transfer facility for waste.

The Officer alleged that the Magistrate erred in respect of the following (at [39]):

1. The legal construction of the term "waste".

2. The application of section 62 of schedule 2 (ERA 62) of the Environmental Protection Regulation 2019 (Qld) (EP Regulation), and in particular the excusal provision in section 62(2)(h)(i).

3. The finding that the Officer had not proven beyond reasonable doubt that the respondent company (Company) was carrying out ERA 62.

4. The taking into account of irrelevant considerations when determining whether the subject material was "waste".

The Court dismissed the appeal having found that the Officer failed to demonstrate an error of law in the Magistrate's decision (at [151]).

The Company operated a business which would buy, sell, and repair farming machinery and equipment, as well as buy and sell components and parts (at [19]). A majority of the items were purchased second hand from farm clearing sales and brought back to the Company's site to be dismantled and stored, sometimes for several years, until they could be on sold at a later time (see [19] and [103]).

The Officer considered this use to be unlawfully operating a resource recovery and transfer facility operation for waste, being ERA 62, and brought three charges against the Company, one for carrying out an ERA without an environmental authority contrary to section 426 of the EP Act and two for failing to comply with a direction notice in respect of carrying out an ERA contrary to section 363E of the EP Act (at [2]). The Company's executive officer was also charged with three offences for failing to ensure that the Company complied with the three contraventions charged against the Company (at [3]).

During the trial, the Magistrate considered the threshold issue of whether the materials the Company received on site were "waste" in accordance with the legislation, and whether there was more than 6 tonnes or 6m³ of waste on the Company's site (at [21]).

The Magistrate concluded that the Officer had not proven beyond reasonable doubt that the Company had carried out ERA 62 and found the Company and its executive officer not guilty of the alleged offences, and dismissed the charges (at [35]).

There are two prescribed relevant activities under ERA 62. The first is section 62(1)(a) of schedule 2 of the EP Regulation which consists of operating a facility for "receiving and sorting, dismantling or baling waste", and the second is section 62(1)(b) of schedule 2 of the EP Regulation which consists of operating a facility for "receiving and temporarily storing waste before it is moved to a waste facility".

The prescribed relevant activity in section 62(1)(b) of schedule 2 of the EP Regulation was not relevant to the proceedings because there was no evidence before the Court which suggested that the items brought onto the Company's site was stored temporarily (at [48]).

The first error alleged by the Officer related to the Magistrate's construction of the statutory meaning of the term "waste" which is defined in section 13(1) of the EP Act relevantly as follows:

"(1)    Waste includes any thing, other than an end of waste resource, that is—

(a)    left over, or an unwanted by-product from an industrial, commercial, domestic or other activity; or 

(b)    surplus to the industrial, commercial, domestic or other activity generating the waste.

…"

The Officer alleged that the Magistrate erred in the construction of the term "waste" by accepting two of the Company's submissions being "…that things with remaining inherent utility or purpose will not be considered waste" and "whether something is or was waste required an objective assessment" (at [69]).

The Officer noted that the Magistrate was not made aware that the objective approach relied on to determine whether material is waste as established in the case of Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216 had been set aside and replaced with a subjective assessment as set out in the case of Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180 (Terrace (No 2)) (see [70] to [71]).

The Court noted that in [27] of Terrace (No 2) the Supreme Court of New South Wales held that the words "unwanted" or "surplus" in the definition of "waste" under the Protection of the Environment Operations Act 1997 (NSW) require reference to the state of mind of a relevant individual, which could be one of the following three people (see [71] and [78]):

1. The owner immediately prior to transportation.

2. The person carrying out the transportation.

3. The owner of the property to which the substance is transported.

The Court noted that Terrace (No 2) related to the definition of the term "waste" under New South Wales legislation, and the ways in which that definition is different to the definition of "waste" under the EP Act (see [73] to [77]). The Court went on to accept that in the circumstances of this case the relevant state of mind for determining whether an item is an "…unwanted byproduct from the activity or surplus to it is…that of the person engaged in the activity…", being the person disposing of the items, or more specifically to this case the farmer conducting the farm clearing sales from which the Company makes the purchase (at [79]).

The Court stated that without direct evidence it could not be inferred that a farmer disposing of the items of machinery during a farm clearing sale would consider the items to be waste (see [80] and [82]). This conclusion was supported by a consideration of the example given in the definition of "waste" in section 13(1) of the EP Act which stated "[a]bandoned or discarded material from an activity that is left over, or an unwanted by-product, from the activity" (at [83]). The Court noted that "...material acquired from clearance sales, is neither abandoned nor discarded by the vendor farmer…it is sold by them" (at [83]).

The Court noted that it could not be concluded on the facts that the viewpoint of the vendor farmer, either objectively or subjectively, was that the material sold to the Company was surplus to the farming activity (at [86]). Furthermore, "[g]iven that the vendors had not abandoned or discarded that machinery prior to the sale of the farm, it would be readily inferred that they did not subjectively view the machinery to be waste" (at [87]).

The Court found the same conclusion as the Magistrate, being that the items on the Company's site from farm clearance sales was not "waste" (at [106]).

An exception to the alleged relevant activity is in section 62(2)(h)(i) of schedule 2 of the EP Regulation, which states that "[t]he relevant activity does not include—(h) sorting or storing—(i) a total quantity of no more than 6t or 6m³ of general waste at any one time".

The Court noted that the statement in the Magistrate's reasons that "the threshold issue…is whether the business received on to site waste [sic]…was more than 6m³ of such waste stored or sorted on site" incorrectly used "sorted or stored" as the relevant activity the subject of the appeal is the "…receiving and sorting, dismantling or bailing of waste" and not storage (see [109] to [110]).

The Court rejected the Officer's submission that at the relevant time of offending there was greater than 6 tonnes or 6m³  of waste on the Company's site, citing that the Officer did not take into consideration ERA 62 in respect of the manner in which the material was received onto the Company's site (at [112]).

The Court concurred with the Magistrate's description of the case conducted by the Officer as being "…a broad brush approach without particular identification of items as waste" (at [120]). In the Court's view, the inferences sought by the Officer for the Court to draw "…are not open, or at least, certainly not the only inferences open" (at 125]).

The Court found that the alleged error in respect of the Magistrate's application of the 6 tonne or 6m³ general waste provision is not able to be proven on the evidence (at [126]).

The third ground of appeal challenged the Magistrate's finding that the Officer had not proven beyond a reasonable doubt that ERA 62 was being carried out on site (at [128]).

The Officer submitted that it was "[glaringly] improbable" that the Magistrate had found that the Officer had not proven beyond a reasonable doubt that an ERA was being carried out based on the aerial images, images taken at the site, and body-worn camera footage from a walkthrough of the site presented to the Court (at [131]). The Magistrate concluded that it was not "glaringly improbable" when considered in conjunction with the explanation of the items depicted in the imagery by the Company (at [133]).

The Court found that there was no error in the Magistrate's fact finding, conclusions, or reasons (at [140]).

The Officer alleged that the Magistrate had regard to the following two irrelevant matters when determining the meaning of the term "waste" (at [142]):

1.  Whether the Company's business achieved waste management by preventing and minimising the generation of waste.

2. The absence of any evidence that the material on the Company's site presented a risk to the environment.

The Court accepted the Officer's submission that "…[a]ll the prosecution was required to prove was that [the Company] received waste on its site and either dismantled, baled or sorted that waste" (at [143]). However, the Court also noted that the Magistrate in her reasons "…was merely referring to submissions which each of the [Officer] and [Company and its executive officer] had made…" (at [148]).

Further, the Court noted that there was nothing in the Magistrate's reasons that indicated that the alleged irrelevant matters were material to the construction of the term "waste" as the ultimate conclusion was that the Officer had failed to prove beyond a reasonable doubt that the Company was carrying out the ERA (at [149]).

The Court found that the Officer failed to prove an error of law in respect of the Magistrate considering allegedly irrelevant matters when determining the meaning of the term "waste".

The Court dismissed the appeal.